Following the recent Federal Court of Australia decision on Workpac v Skene (2018), employers who incorrectly classified their casual workforce could be held accountable to back pay owing entitlements under the National Employment Standards (NES) to employees.

This decision has created challenges for many employers of casual staff, with the definition of casual employment remaining unclear in the award system.

On the 13th of December, the Government announced a variation to the new regulation which clarifies the ability of employers to claim back an employees casual loading payments against certain owing NES entitlements (such as annual and personal leave). This regulation came into effect on 18 December 2018.

the employee is paid a casual loading that is clearly identifiable as being an amount paid to compensate the person in lieu of entitlements that casual employees are not entitled to under the NES, such as personal or annual leave

despite being classified by the employer as a casual, the employee was, in fact, a full-time or part-time employee for some or all of their employment for the purposes of the NES

the employee has made a claim to be paid for one or more of the NES entitlements (that casual employees do not have) that they didn't receive for all or some of the time that they were incorrectly classified as a casual.”

If all of these points are satisfied, an employer can make a claim to have the casual loading payments made to the employee taken into account when working out the entitlements owing to the employee for the relevant NES entitlements.

What time frame does the new regulation apply to?

The new regulation applies to employment periods that occurred before, or that occurred on or after, 18 December 2018.